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2022 DIGILAW 230 (ORI)

Dharanidhar Sarangi v. Harekrushna Tripathy

2022-06-22

D.DASH

body2022
JUDGMENT : D.Dash, J. The Appellant, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) has assailed the judgment & decree dated 18.10.2003 & 03.11.2003 respectively passed by the learned Additional District Judge, Kendrapara in Title Appeal No.33 of 2001. By the same, the judgment and decree dated 29.09.2001 and 06.10.2001 respectively passed by the learned Civil Judge, Junior Division, Kendrapara in Title Suit No.139 of 1995 have been confirmed. The Appellant, as the Plaintiff, had filed the suit and he having been non-suited by the Trial Court, had carried and Appeal under Section 96 of Code wherein too he has been unsuccessful. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court. 3. The case of the Plaintiff is that he is the owner in possession of Lot No.1 of Schedule-A land and he is having a house over that land. It is his case that he had purchased the said land on 21.01.1972 and also constructed a pucca house which was completed in the year 1995. The Defendants are the purchasers of the plots adjoining to his land from Dami and it is said that they started digging a ditch by encroaching 30 links of the land from his land as shown in Schedule-A. They damaged the building and dug ditches on the private road running over Schedule- B land. The land in Schedule-C was purchased by the Plaintiff in the year 1981 from Chhayamani Divya and since then he was in possession of the same but in Consolidation Operation, the land stood recorded in the name of the Plaintiff and Defendants. So, the Defendants filed an objection case, which was pending when the suit was filed. The Defendants claim to have purchased the suit land from Dami and they constructed a cowshed over that land forcibly. It is stated that the Plaintiff having approached the police, when failed in getting any response, the suit has come to be filed. 4. The Defendants, in their written statement, deny the factum of encroachment of any land shown in Schedule-A of Lot No.1. They also deny to have dug any ditch over Schedule-B land which according to them, is a pond and as such the ditch exists since long. 4. The Defendants, in their written statement, deny the factum of encroachment of any land shown in Schedule-A of Lot No.1. They also deny to have dug any ditch over Schedule-B land which according to them, is a pond and as such the ditch exists since long. It is their case that Chhayamani had no title over the land under plokt nos.769 and 739, which is said to have been sold to the Plaintiff. Thus, it is stated that the Plaintiff had no title over the same when he possessed the same. The Defendants claim to have purchased the suit land and in possession of the same. As an alternative, it is stated that if it is found that the Plaintiff has the title over the same, the Defendants, by virtue of their long possession that to in a peaceful manner for upward of the period prescribed and peacefully perfected title over the same by way of adverse possession. It is also said that the suit is not maintainable in view of section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, ‘the OCH & PFL Act’). 5. The Trial Court, in the backdrop of the above pleadings, has framed eight issues. Answering the crucial issues, upon examination of evidence and their evaluation, finding has been returned against the Plaintiff. The Appellate Court being moved by the unsuccessful Plaintiff has taken a view that the evidence on record do no show that the Defendants have encroached any portion of the land of the Plaintiff as shown in the schedule and at the end, the view has been taken that since the Plaintiff is not in possession of the land and his title is under challenge before the Consolidation Authorities, he is not entitled to the relief of injunction. 6. Mr.T.K.Mishra, learned counsel for the Appellant, at the outset, inviting the attention of the Court to the application under Order 41 Rule 27 of the Code numbered as Misc. Case No.378 of 2015, submits that in the meantime, the Consolidation Operation in the area being over, there has been de-notification as required under law. 6. Mr.T.K.Mishra, learned counsel for the Appellant, at the outset, inviting the attention of the Court to the application under Order 41 Rule 27 of the Code numbered as Misc. Case No.378 of 2015, submits that in the meantime, the Consolidation Operation in the area being over, there has been de-notification as required under law. He further submits that in the dispute which was before the Authorities under the OCH & PFL Act, final order has been passed and, therefore, now the Plaintiff, on the basis of the said final order passed by the Consolidation Authority can very well institute appropriate proceeding before the appropriate Court of law in asserting infringement of his right over the land which was the subject matter of the consolidation proceeding and seek appropriate relief as against the wrongdoer. He thus, while pressing for admission of the certified copy of the order dated 22.08.2014 passed by the Deputy Director, Kendrapara in Appeal Case No.19 of 2008 as additional evidence in this Appeal, contends that the Appeal now can be disposed of in the light of the submission advanced since the Appellant is no more interested with the prayer in respect of Schedule-A & B land. None appears for the Respondents when the matter is called despite opportunity being provided. 7. Keeping in view the submissions made, I have carefully gone through the judgments passed by the Courts below. I have also perused the order dated 22.08.2014 passed by the Deputy Director, Kendrapara in Appeal Case No.19 of 2008. 8. It being the admitted position that the suit had been filed when the consolidation operation was going on and the dispute relating to title over Schedule-C property was under adjudication of the Authorities under the OCH & PFL Act, the final order passed in the said Appeal is essential to enable the Court to dispose of this Appeal. Therefore, the same is accepted as an additional evidence and marked as Ext.16. 9. As gathered from the submission of the learned counsel for the Appellant that when the Plaintiff had filed the suit alleging encroachment of a portion of the land under Schedule-C by the Defendants and further seeking injunction as against them in respect of dealing the said land in any manner detrimental to the interest of the Plaintiff, the Consolidation Operation was in progress. It had been contended before the Courts below that in view of section 4(4) of the OCH & PFL Act, the suit is not maintainable. The First Appellate Court has also taken note of that. In that background, when the Consolidation Authorities have disposed of the dispute, this court is of the view that in terms of the said order passed by the Consolidation Authorities, if the Plaintiff’s right as available under the said order in respect of Schedule-C land, has in any way been infringed by the Defendants, he can very well agitate the same by filing a fresh suit seeking appropriate relief as to recovery of possession and injunction whose grantability would be decided by the said Court. 10. The order dated 22.08.2014 passed by the Deputy Director, Kendrapara in Appeal Case No.19 of 2008 (Ext.16) runs as under:- “……. In the result, I order to record the case land, i.e., hal plot no.944 Ac.0.30 corresponding to L.R. plot no.766 Ac.0.30 of village-Basudeipur in the name of the appellant/petitioner- Dharanidhar Sarangi/” Thus, it appears that the Plaintiff’s right over the aforesaid land has been declared by the Appellate Authority. So, it is now the position that in view of said order and in terms of that, the Plaintiff can proceed with further legal action, if he finds that his right, title and interest and possession over the said land is in any way being infringed by the Defendants. 11. In that view of the matter, without proceeding to answer the substantial questions of law, whose significance does no more stand in view of the development relating to adjudication of the rights of the parties over the land in question by the Consolidation Authority; this Court feels inclined to dispose of the Appeal with the observation that basing upon the order dated 22.08.2014 passed by the Deputy Director, Kendrapara in Appeal Case No.19 of 2008 in respect of the land under hal plot no.944 Ac.0.30 decimals corresponding to L.R. plot no.766 Ac.0.30 of village-Basudeipur, it would remain open for the Appellant to institute appropriate legal proceeding as known in law before the appropriate forum in case his right, as stands decided by the Consolidation Authority over the land has been infringed or is apprehended to be infringed by the Defendants giving rise to a cause of action for the same. 12. 12. With the above observation, the Appeal stands disposed of. No order as to cost.